JurPC Web-Dok. 84/1998, Abs. 1 - 26

Introduction

In the movie "Philadelphia" the lawyer Denzel
Washington is asked, what he likes most in his profession. The answer is: "That
sometimes justice can be done - and when it happens, it´s quite a thrill".
Today I want to analyze with you, whether computing in the law can make a
definite contribution to this "thrill".

JurPC Web-Dok.84/1998,
Abs. 1

As far as I know the explicit question "Is the
computer fostering a more just justice system?" was first asked ten
years ago within a survey conducted by the journal "Datamation". The
introductory words to this survey still deserve special attention:

Abs. 2

"Unlike their usage in standard businesses,
technologies employed in the legal system must contribute to a very elusive end
result: justice. In the corporate world it´s a given that computers can be
a competitive weapon. What then is their role in the justice system? Can
computers lead to a greater ability to provide justice? The question produces
unease in some interviewees, who seem to be struggling with the issue for the
first time."(Susan Kerr, Is the computer fostering a more just
justice system?, Datamation, January 15th, 1988, p. 45 - 55, 45.)

Abs. 3

I have the impression that even ten years after this statement
(at least in Germany) some unease could still be felt, if the question of a
computer-specific contribution to justice would be asked again.

Abs. 4

Preliminary considerations

The question "Can computing in the law contribute to
more justice?" implies some preliminary considerations.

Abs. 5

Perhaps the most important one among them is that computing in
the law has to be justified. We don´t have to use computers, just
because they are available. This is, by the way, true for every instrument. Or,
to say it in more philosophical terms, the "is" - without further
arguments - does not imply an "ought".

Abs. 6

Certainly people before were also aware that computing in the
law has to be legitimated. In the early times they were forced to put forward
arguments of this type by a sceptical attitude prominent among decision-makers
(by the way a situation more typical for Germany than for other countries). The
reasons given for the necessity to apply computers were mainly of a quite
practical type, which can again be explained by the expectations of
decision-makers. Pleading for computing applications it was said for example
that things can be done more quickly with computers than without them. Though
these practical considerations were (and are) not without value, it cannot be
ignored that we do not get a fundamental justification, if we only have recourse
to short aimed practical interests. The only possibility to go further lies in
the attempt, to link those practical interests to more fundamental concepts, and
finally to the concept of justice, which gives the dignity to our profession.
Methodologically speaking: Under this approach practical gains are not accepted
as an end in itself, but only as means to and end, and that is - justice. As we
will see, an acceleration in the judicial procedure can be seen as contribution
to justice, thus serving as our first example.

Abs. 7

"Justice delayed is justice denied"

There is a relationship between justice and time. Using the
language of work-flow we could say that justice is a "just in time"-concept.
If we do not administer justice in the appropriate moment, what we administer
then is no longer full justice, it might even be injustice. In Greek philosophy,
by the way, this is a consequence of a more fundamental principle. According to
the Greek every action has it´s right moment. This moment was called "kairos".
If a responsible actor missed this right moment, the full quality of his action
was no longer guaranteed. A Roman proverb can be seen in the same context. The
Romans said: "Bis dat qui cito dat", which means, that the one
who gives quickly, id est directly in the moment of necessity, gives twice. In
the field of law the English tradition has drawn the consequence from
observations of this type to the question of justice. They say " justice
delayed is justice denied". Because this is true (almost by evidence),
computing can help to avoid this specific denial of justice by delay, thus
contributing to more justice.

Abs. 8

Having said this, a possible misunderstanding must be ruled
out. I am by no means convinced that computing (everywhere, not only in the law)
is by itself a guarantee for a speedier expedition of things. We have seen
computing applications in the law (again I am speaking of some German
experiences) that slowed down well established traditional computerless
procedures. Wherever this was the case, the responsible
computing-mismanagement was more than a practical failure. It was - and here our
analysis has it´s value, too- an action doing harm to the full realization
of justice, which is worse than ordinary mismanagement. From this observation
results a high level of responsibility for the computing departments in legal
institutions.

Abs. 9

Publication of the law

We all agree that publication of the law is a necessary
prerequisite of justice. This experience is deeply rooted in the conscience of
people in different periods of history. When we look into the book Nehemia,
chapter 8, we find the especially impressive story of Esra reading the law to
the people from morning to noon. In medieval Europe we find many documents
describing the procedure whereby special envoys of the king were bringing the
law to the people in the villages by reading it to them in special assemblies.
Not too long ago a French colleague (Christian Scherer) has published a
collection of those texts in the Internet under the title "L´Internet
au moyen age" ("Internet in the medieval period"). I will come
back in a few moments to the idea implied in this interesting title.

Abs. 10

Naturally kings taking care for the publication of the law
might not have been driven primarily by considerations of justice. Their primary
concern might have been the effectiveness of their law in order to guarantee
complete obedience by their subjects. Nevertheless they cannot have ignored
completely the relationship between making the law public and the idea of
justice. It would be fundamentally unjust to punish someone for violation of the
law, if this person did not have a fair chance to know the law beforehand. This
would be, as Jeremy Bentham has put it in criticism of his contemporary law, a
kind of "dog law", the point of comparison being that the dog learns
about his failures only by being punished. He has (in this view) no chance to
know the applicable rules before.

Abs. 11

Nowadays the concept of "secret law" that existed in
former periods of history and totalitarian governments has almost vanished. We
have the well established feeling that by the publication of the law in the
official law bulletins and law gazettes every citizen has the fair chance to
learn about what we deem necessary. But this might well be a collective
illusion. A more realistic approach reveals that without a stronger effort to
bring the law to the people even nowadays "dog law" might be a danger.
And to go one step further: What Esra did and what the messengers of the kings
did might have been much more "user friendly" than what our seemingly
more "modern" routines do. And here "user friendliness" is a
justice related value. To link this idea to other legal concepts, we might have
recourse to a comparison with two types of obligations. We distinguish
obligations, where under the contract a good has to be transported to the
creditor (Bringschuld), from obligations, where the creditor has to go
and get the good by himself (Holschuld). There is a better
administration of justice, when the law is conceived as "Bringschuld",
id est as something the public authority has to deliver to the people as
directly as possible.

Abs. 12

At this point modern network computing technologies (especially
the Internet) are valuable as instrument to provide for better publication of
the law and thus contribute to more justice giving citizens an improved chance
to learn about the rules they are expected to follow. To grasp this idea it is
important to see that some limitations in our present law publication system are
caused by technical and economical circumstances. If you imagine for a short
moment the idea that the state would give one copy of the official law gazette
to every citizen for free, the financial consequences make the idea almost
self-destroying. But if we turn to a different publishing environment, in this
case the Internet, we can see that with a good organization it is very well
feasible, to publish all law texts in way that are directly accessible by every
citizen having access to the net.

Abs. 13

(This is, by the way, if we use this technology, another
justice-related question: Network-based computing applications fostering a more
just justice system only do so, if their is a fair chance to have access to the
net. In the interest of a sound analysis, this point has to be stressed
throughout our discourse. The people and the countries lacking this possibility
should not be forgotten.)

Abs. 14

Fortunately many governments and the European Union have
realized that the Internet can (and should) serve as medium transporting the
law-texts right into the home of the citizens - and that for free. I like to
break down this idea to the formula "free law for free citizens".
Perhaps the obligation to provide the law texts for free can also be
brought into a relationship with the idea of justice. Only ask yourself the
question, whether it can be deemed just, that the citizen has to pay a
second time to get the law text, for the production of which he has already paid
for by his taxes. Or, facing the problem from another viewpoint: Is it justto expect obedience to the rules of the law the citizen can only learn about
after a financial contribution? Whoever is tempted to answer in the affirmative
must have recourse to the existence of public libraries, where citizens can have
access to the law for free. Otherwise the present system could not even be
qualified as fair (fairness being an implication of justice). Would it not be a
more just situation and a better "fair play", to establish the
Internet as "virtual" library of free law texts accessible by (almost)
everyone from (almost) everywhere? This was the idea leading the French
colleague I cited a few moments ago to create the paradox title "L´Internet
au moyen age" ("Internet in the medieval period"). He wanted to
stimulate the appropriate thought that now is official French policy.

Abs. 15

Publication of case law

So far we have been talking about the text of the law only (law
in the sense of "statute law"). But there is also the case law as
important part of the law system. Should not everything, we have said about the
publication of the statute law, apply to the publication of the "leading
cases", too? The answer must be "yes", because the rules in the
leading cases have the quality of being potentially applied to future cases -
and that is the quality of legal rules, a citizen must know about, because he
can be subject to the application of these rules. Hence one should have a fair
chance to know about them beforehand. As you can see the argument is
structurally equivalent to the argument just proposed in the case of the text of
the law. And it is by more than coincidence that Jeremy Bentham has proposed his
"dog law"-argument specifically with regard to the case law of his
times.

Abs. 16

Other forms of publication

In the law not only the text of statutes or cases requires
publication. In addition there are further special requirements for publication
that can be rethought within the background of new technical possibilities. One
instance may serve as example for this line of thought.

Abs. 17

When the place of residence is unknown for the party of a civil
case a public delivery is possible. (Details can be found in §§ 203ss.
of the German Code of Civil Procedure -ZPO-). As instrument for this public
delivery two means of publication are possible. One is a proclamation on a
public board in the court, another one is (under certain circumstances) an
additional notice in a newspaper.

Abs. 18

The reason for this rule of public delivery is the underlying
idea that the party concerned through this form of publication has a fair chance
to get knowledge of the state of affairs. To further proceed in the case without
having provided this fair chance would be considered as unjust. Though this may
be sound in theory, in practice it is not. For all experience demonstrates that
even with a public delivery the probability to really get informed is very low.
If legislation could take into consideration to change the relevant rules in
such a way that for example the publication by means of the Internet would have
the same quality as the publication in a newspaper, a modern computing
environment would by improving the chances to be informed contribute to a higher
level of justice.

Abs. 19

Equal treatment under equal circumstances

Justice has two aspects: The formal one and the materialone. The formal one requires that equal cases be treated equally under equal
circumstances. The material one asks for a treatment that is fundamentally right
(or appropriate) taking into consideration the structure of the situation at
hand. On a scale of difficulty formal justice is easier to discuss than material
justice. I will try to propose an argument that for reasons of formal justice
certain information management conditions must be met that can only be
guaranteed by computing environments.

Abs. 20

It is evident that the principle "equal cases should
be treated equally under equal circumstances" requires knowledge of
the previously decided cases, because otherwise the comparison required by this
principle cannot be realized. This is not at all a new idea: Wherever the
principle of equality has been evoked in the sense just described we encounter
the effort to provide collections of relevant jurisprudence. But the more we
approach the present state of affairs the more traditional (printed) collections
of jurisprudence have a tendency to become inefficient. The reason is simple:
There are far too many cases to be taken into consideration than can be dealt
with by a paper-based "retrieval" alone. It is no longer an isolated
experience that a case, which according to all rules would have to be taken into
consideration, is discovered only after the decision has been made.
Computer-based retrieval technologies definitely improve this situation (if
mastered competently). It is interesting to see that there is a certain
parallelism between the result arrived at here and the proposal to publish
freely the relevant mass of leading cases. This parallelism in a way can be
interpreted as proof for the coherence of the justice-related argument outlined
here. If in accordance with this view the relevant case-law material is
published electronically, by the very act of this publication the material is
subject to the retrieval facilities that are required in order to do the
necessary similarity-comparisons. I do not by any means underestimate the
difficulties of efficient procedures for similarity-comparisons between cases.
But the proof to be made today is an easier one: Chances to get to a better
level of formal justice in case-based environments are definitely improved by
computer-based retrieval facilities.

Abs. 21

And the answer?

What is the answer then to our initial question "Can
computing in the law contribute to more justice?" For me (and I invite
you to share this view) it is a cautious "yes". A cautious "yes",
because no guarantee is implied (especially no "money back guarantee").
But chances are that with computers in the law some ancient justice-related
hopes might finally prevail in a more appropriate environment than available
before. Thus ten years after the studies conducted by "Datamation" the
overall assessment can still be quoted:

Abs. 22

"Technology´s ramifications also aren´t
clear-cut. It´s a good bet that information technology will help in the
processes of the court, thus alleviating some of the injustices caused by today´s
overburdened system. In and of itself, however, technology isn´t enough to
guarantee a justice system that is more just, a system that is and will continue
to be dependant upon human judgement."(Susan Kerr, Is the computer
fostering a more just justice system?, Datamation, January 15th, 1988, p. 45 -
55, 55.)

Abs. 23

So we are finally back at the point the Roman lawyers stressed
as essential: It is the character that makes up a lawyer (pectus facit
iurisconsultum). Though this is true, it might well be, that without
adequate computing technology even the lawyer of good character might be lost
within the complexity of modern legal work. Once this situation has been
understood and the necessary means of assistance have been put to practice, the
next question will be another one. As the brothers Dreyfus have put it:

Abs. 24

"The chips are down, the choice is being made right
now. And at all levels of society computer-type rationality is winning out.
Experts are an endangered species. If we fail to put logic machines in their
proper place, as aids to human beings with expert intuition, then we shall end
up servants supplying data to our competent machines. Should calculative
rationality triumph, no one will notice that something is missing, but now,
while we still know what expert judgement is, let us use that expert judgement
to preserve it."(Hubert L. Dreyfus/Stuart E. Dreyfus, Mind over
Machine: The power of Human Intuition and Expertise in the Era of the Computer,
New York: The Free Press 1986, p. 206).

Abs. 25

But that is another story that might have to be told in another
moment.

JurPC Web-Dok.84/1998,
Abs. 26

Fußnote:

(1) Video-lecture given for a conference of the
Ministry of Justice in Israel. The form of the presentation has been kept.